W v S [2024] EWHC 3105 (Fam)

Background

The mother, S, and father, W, are both Chinese citizens who were born and raised in China. Both moved to the UK. They met in Cambridge in 2015 and married in 2017. In 2019 they purchased a home with financial support from their families in China (the majority from S’s family). Their daughter A, was born in 2020 and is a British citizen. The family retained close links with China and travelled there once a year to see family (other than during the course of the pandemic). A is bilingual speaking Mandarin at home.

In December 2023, a family trip was planned to China. A fell ill and was misdiagnosed with flu. The family (S, A and W’s father) made the trip to China anyway. A was subsequently diagnosed with Kawasaki disease - a rare heart condition that causes high fever and inflammation in the blood vessels throughout the body, including those supplying the heart. The condition requires long term follow up care with a paediatrician.

S and A had originally planned to return to the UK in January 2024, but S postponed the journey on the grounds that A was unwell. However, the relationship between S and W had broken down by that time, and on 12 January S told W that she wanted to divorce. She also asked for his agreement to her staying in China with A until A reached secondary school age, reassuring W that he and A had a good relationship and she would promote that. This was not agreed.

In February 2024, S returned to the UK without A in order to apply for indefinite leave to remain. Her visa was due to expire on 10 May 2024, and she wanted to ensure that she and A could travel freely between the UK and China. The application was approved on 15 April 2024.

There were ongoing discussions in early 2024 between S and W about the terms of their divorce, and particularly about the residence and care of A. It was agreed that a final decision about where A would live would be made considering how well A settled in China during 2024, but that she would visit W during the summer and that S would bring her to Cambridge for that purpose in August 2024.

Without telling W, S and her mother then brought A to Cambridge in April 2024 in order to renew A’s Chinese visa. W happened to come home, found the family there and there was an argument during which both he, and S and her mother, called the police. W saw A again before she returned to China with S.  The next day, S told W that she would not bring A back to the UK. She then issued divorce proceedings in China. At the same time, W issued an application here under the inherent jurisdiction for wardship and return orders in relation to A.

There were allegations by S that W had been abusive towards her during the marriage. There were also two incidents – the one in April 2024 detailed above, and a further incident in August 2024 which involved W and some of A’s grandparents where again the police were called.

At the first case management hearing of W’s return application, the court was made aware of the concurrent divorce proceedings issued by the mother in China and deferred consideration of the issues of jurisdiction, forum conveniens, and the need for a welfare report until the next hearing, directing statements to be filed by the parties. At the second CMH some 3 weeks later, the judge determined that the evidence required in this case need not include a wishes and feelings (Cafcass) report.  It was anticipated that S would file a relocation application which could be considered at the final hearing, and this was subsequently done.

At the final hearing there were, therefore, two applications to be determined:

1. W sought a return order for A (from China) under the inherent jurisdiction; and
2. S sought permission to permanently relocate (to China) with consequential child arrangements to be made in respect of time spent with W.

At the hearing, W appeared as a litigant in person, and S appeared via video link from China. S had made allegations of domestic abuse and so W’s cross examination of her was prepared by him in writing with the questions being asked by the judge.

The law

The question at the heart of both applications was that of A’s best interests in the context of her welfare. However, there were several issues which the court had to consider in order to make a decision on the applications:

1. The Family Procedure Rules 2010 in respect of domestic abuse and harm, particularly where children are concerned;

2. Non-Convention Abduction, in which the authorities say that Hague Convention concepts should not be applied in non-Convention cases. The court has the power to order an automatic return of the child without conducting a full investigation of the merits, and whilst summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from their home country, it may well be in the best interests of the individual child. In non-Convention cases, the court must act in accordance with the welfare needs of the particular child. Factors which might affect the decision in deciding whether to order a summary return or not could include the degree of connection of the child with each country; the length of time he/she has spent in each; any differences in the legal system of the two countries and whether each had a relocation jurisdiction; and the impact of the decision on the child’s primary carer.

3. The Relocation application, in which the court will consider the statutory checklist set out at s1(3) of the Children Act 1989:

i. The ascertainable wishes and feelings of the child (considered in light of her age and understanding);

ii. Her physical, emotional and educational needs;

iii. The likely effect of any change in her circumstances;

iv. Her age, sex, background and any characteristics of hers which the Court considers relevant;

v. Any harm which she has suffered or is at risk of suffering;

vi. How capable each of her parents and any other person in relation to whom the Court considers the question to be relevant is of meeting her needs;

vii. The range of powers available to the Court under the Children Act 1989.

The authorities confirm that the welfare of the child is paramount and should be considered above all other factors. This is a holistic exercise which involves balancing the various factors in order to determine which of the available options best meets the requirement to afford paramount consideration to the welfare of the child.

4. Habitual residence which essentially corresponds to the place which reflects some degree of integration by the child in a social and family environment (the child does not need to be fully integrated). This is a factual test, and will normally correspond to the place where a child lives with the parent(s) who care for him but the investigation must focus on the child, not the parent. A parent can cause the child’s habitual residence to change, but the intention of the parent is not determinative. The stability of the residence is more relevant than its permanence as the question is a qualitative one to do with the level of integration of the child, not a quantitative one relating to the time spent at an address.

The decision

Having considered the relevant law, the judge went on to consider what decision to make in respect of the applications by each parent.

The judge felt that A was happy and well cared for, with close relationships with both sides of the family. A had lived in the UK all of her life, but the only member of her family left in the UK was her father – everyone else is based in China (albeit that W’s and S’s families are 500 miles apart). It is clear that A’s habitual residence was the UK prior to December 2023, but it had probably changed by about May 2024 to China. By the date of the hearing in November 2024, A’s habitual residence was China and she was fully integrated into the maternal family and Chinese education system.  Nevertheless, A remains a British citizen and the applications were made to the High Court in England. There was no expert report from a Chinese lawyer available, but the judge adopted the information set out in the judgment of Baker J in Re DO & BO (Temporary Relocation to China) [2017] EWHC 858 (Fam) and confirmed that any future proceedings in relation to A whilst she remains habitually residence in China would have to be made in China. The court in China might consider an order made in England and Wales as evidence but would not be bound to follow it.

The judge acknowledged that W had not at any stage unequivocally consented to A’s permanent relocation to China. Had he known before she went to China in December 2023 that his marriage was nearly at an end and that A may not return to the UK, he might well have required S to make a relocation application before leaving. He also found that W was not naturally aggressive or manipulative, being more of a stickler for the rules, and that he had not been overly controlling in the negotiations since December 2023.

However, whether A should be returned depends on the welfare principles set out in the authorities and whether the relocation application should succeed (notwithstanding the unauthorised and so unlawful retention of A in China).

In respect of S’s application, the judge was satisfied that the arrangements for her care in China were appropriate and that A was now settled and habituated into those arrangements. The ‘obvious lacuna in the arrangements for her at the moment is any opportunity to see and spend time with her father, other than video-contact’… The judge commented that it was very sad that arrangements had not been put into place to allow A to spend more time with her father particularly in the summer of 2024. 

Ultimately, the judge felt that A required a period of calm and stability and making a return order was unlikely to achieve that. It would probably have the opposite effect, leading to contested proceedings in China which could cause irreparable harm to family relationships.

With that in mind, the judge made the relocation order stating as follows:

44. “Although A is a British citizen, all of her extended family, including both of her parents, are Chinese nationals, and it is inevitable that Chinese is and will remain her primary culture. Whilst it will be of great value to her to grow up in a bilingual environment, her connections to China and its culture will inevitably remain the strongest influence on her. Provided that she can maintain her relationship with her Chinese father in England and his family in China, I am satisfied that it is in her welfare interests to live with her mother in China for the next years, although I record the mother’s expressed intention at this stage that she should ultimately be educated in England when she is a little older. That however will have to be a matter of future consideration and agreement between her parents.
45. I am satisfied that the mother’s motivation in making her application, in circumstances where she probably did not need to, given A’s current probable habitual residence in China, is not founded on purely selfish motives. The initial removal was by agreement, and was initially motivated by medical concern, no doubt also alongside the repercussions from the breakdown of her relationship with the father. The subsequent decision to retain A in China has always been accompanied by an offer of realistic and appropriately facilitated visiting arrangements. It was regrettable however, that their initial offer was made conditional upon the father’s cooperation with the mother’s immigration status. Nevertheless, the mother’s arrangements for A in China are well-thought through and clearly in her interests. That is of course easier to determine, in circumstances where she has already been living there for over nine months, and is undoubtedly settled. Whilst she may have been equally happy and well cared for in England last year, that is realistically no longer her status quo.
46. Having said that, the move for A will only be in her best interests going forward if it can also be shown practicable for her to maintain a full and beneficial relationship with her father, which at the moment is inappropriately limited. I also find that the father is not motivated by any desire to control the mother or A, but is very concerned to maintain a full relationship with his daughter, as is undoubtedly in her interest. Whilst A is certainly benefitting from her relationship with the maternal family, it is also important for her development and longer term-stability that her relationship with the father and her extended paternal family is also maintained and fostered. Her paternal grandmother in particular has played an important role in her childhood, and A should not be cut off from contact with her.
47. Coming back to the s.1(3) checklist, I do not have any report before me as explained about A’s wishes and feelings, given her young age, but is it clear in China from the mothers detailed evidence that her physical and educational needs are being met. As explained, her emotional needs must encompass as full a relationship as possible with the father and his family, which is currently not happening as it should. The change of the move to China is one that has already happened for her, and been absorbed, and indeed the more profound change for her now would be if she were to be returned to England, and lose regular contact with her maternal family. However, she is sufficiently young that she would no doubt absorb such an outcome, and recall her former life with both parents in the UK. The last 12 months will have been disruptive for her, and the lack of time spent with her father will have had a negative effect which should be addressed as fully and comprehensively as possible. I have no doubt that both of A’s parents are equally capable of providing suitable care for her, and that there is no reason for arrangements to be affected or curtailed by their respective abilities.
48. With all of that, how should I then exercise the powers available to me? I am as I have said satisfied that A was habitually resident here in England when she consensually travelled with her mother to China in December 2023. Her failure to return to this jurisdiction since, and retention in China by her mother, was not ever agreed or authorised by the father and so was unlawful. However, these are not Hague Convention 1980 proceedings, and the tests that I must apply both to the father’s application for a return order and the mother’s later application for an order retrospectively authorising her relocation to China are both essentially welfare based.
49. Provided that the arrangements which the mother has proposed for the father and his family to be able to spend time with A are put into immediate effect, then I am entirely satisfied that it is now in A’s best interests to remain in China with her mother for the next few years, until such time as there is agreement between the parties, or in default an order is made by the Chinese court, which authorises her to return to live in this jurisdiction for the continuation of her education as both parents currently foresee will be appropriate for her.”

There was no order made on W’s application for a return order, and S’s application for an order permitting A’s permanent removal to China was granted (on the understanding that the parents’ current plans for her would be for her return to the UK in due course for her education and that arrangements would be put in place for her to spend time with her father).

Dr Onyoja Momoh has a specialist practice in international family law, and is frequently instructed to act in child abduction cases whether the abduction is to a Hague or non-Hague Convention country. She is extremely knowledgeable about the law and practice, and is able to give pragmatic and compassionate advice.